86 N.Y.S. 391 | N.Y. App. Div. | 1904
The action is brought to recover the damages sustained in consequence of the violation by the defendant of a contract by which
, It is not alleged that Cole was not the agent of the defendant; and the defendant, admitting that the negotiations with Cole were negotiations with the company, and that the delivery of the bond to Cole was a delivery to the company and was a valid obligation of the plaintiff to the defendant, was not in a position to deny Cole’s authority to act for the company. The plaintiff complied with this agreement, and executed and delivered to Cole for the defendant the bond and mortgage and the transfer of the personal property ;
The plaintiff then commenced this action to recover the damages sustained by him in consequence of a breach of this contract by the defendant. Upon the trial the plaintiff offered evidence as to the making of the' contract and its breach by the defendant. To this the defendant objected upon the ground that they were going to insist that no contract was made with the defendant, stating, “ Mr. Cole had a certificate filed in Albany and was selling agent here, and process was served on him. He had no authority on account of it to make any agreement of any kind.” The plaintiff then testified that he saw Cole at the office of the company in the city of New York; that Cole was the general manager of the company in that city; that prior to the commencement of the action the plaintiff had dealings with the defendant corporation at its office in the city of New York and that Cole was in charge of that office as the general manager of the defendant in the city of New York, he being the only one that represented the company in New York. And
The president . of the defendant corporation testified that he resided in Boston,, Mass.; that Cole had authority to . sell lumber in and about New'York and report sales to the Boston office, forwarding any collections that might come through the New York -office to the Boston office, but had no authority to sue in the name of the company; that Cole was a director of the defendant corporation at the time ; that he had no doubt but that Cole wrote in connection with this matter at the time. Cole then testified that in 1893 he was a director of the company and more particularly had «charge of the business of the New York office as sales agent for their lumber business; that he had negotiations with the plaintiff looking to a settlement of the suit in New Jersey; that on November 10,1893, the plaintiff came to his office and had a talk with him and handed him a bond and mortgage, and that Cole told the plaintiff that he would put -the matter in the hands of the attorney who bad general charge and would put into proper shape an agreement to cover the preliminaries. He contradicts the plaintiff’s testimony as to the making of the definite agreement to which the plaintiff testified. Upon cross-examination Cole' testified ' that he commenced «an action in the Supreme Court in which he was plaintiff, and the plaintiff in this action was the defendant, upon a promissory note which was the note of the plaintiff due to the defendant; that to the best of' his recollection this note was assigned to him by\the «company and the' suit was. brought in his name for convenience; that he paid the company nothing for the note. Whereupon «counsel for the plaintiff offered in evidence the judgment roll in the suit of Cole v. Stearns in the Supreme Court of this State. That was, objected to by the defendant as immaterial and , incompetent; the: objection was overruled, and the " defendant excepted. There was further evidence given tending to contradict the plaintiff’s account of the arrangement, and as to the value of the
The correctness of this conclusion is the principal question presented upon this appeal; for, if that judgment was binding upon: the defendant as an adjudication, the only question remaining open between the parties was the amount of damage that the plaintiff sustained by a breach of the contract; and the exceptions to rulings in relation to testimony, except to that relating to the damages, became entirely immaterial. This adjudication not having been pleaded, it was not competent as a bar or an estoppel in this action, but, as said by the Court of Appeals in Krekeler v. Ritter (62 N. Y. 372), “ as evidence of a fact in issue it was competent although not pleaded like any other evidence, whether documentary or oral. A. party is never required to disclose his evidence by his pleadings-The evidence was competent to disprove a material allegation of the complaint traversed by the answer. As evidence it was conclusive as an adjudication of the same fact, in an action between the same parties. * * * The court properly held that ‘ the matter adjudicated between the parties in another action might be given in evidence.’ ” The only question, therefore, is whether this judgmént was binding upon the defendant as an adjudication.
The general rule is stated in the American and English Encyclopaedia of Law (Yol. 24 [2d ed.], 724) as follows: “The person® between whom a judgment or decree in a suit is conclusive in a subsequent suit are the parties to the prior suit and their privies, and as a general rule it is conclusive only between them; ” and at pages 735 it is said: “ The term parties as used in connection with the doctrine of res judioata includes all who are directly interested m
• Applying this rule, it seems to me clear that the defendant stood in. privity to Cole in the. action which he brought to enforce a claim against the plaintiff for the benefit of the defendant, and that, the adjudication was binding upon the corporation; and the judgment roll having been introduced in evidence, not, as the defendant claims, to contradict Cole, but as evidence in the case, it was when introduced conclusive as evidence that the contract was made and broken by the defendant, and that for the damages sustained by its breach the defendant was responsible. It follows, therefore, that
It was said, however, that as the plaintiff introduced evidence as to the contract, not relying upon the judgment, he tendered an issue as to the making of the contract which, in effect, waived the conclusive character of the former adjudications. But the fact that plaintiff offered unnecessary evidence, or that the conclusiveness of the evidence did not appear until after the plaintiff had rested, does not prevent due effect being given to the evidence when it is properly in the case. To establish the competency of this judgment roll as evidence it was necessary that it should appear that the corporation was a privy and thus bound by the judgment. When that question was established by the evidence of Cole, the plaintiff then introduced the judgment roll as evidence in the case, and claimed that this judgment was as evidence conclusive; and that effect was given it by the court. There was nothing in the record that can be said to justify the conclusion that the plaintiff did not rely upon this judgment as evidence in the case sustaining his causé of action; and as the learned trial judge correctly construed the binding effect of this judgment as evidence, we are not justified in reversing the judgment.
We think also that the court correctly determined the amount that was to be deducted from the total value of the property, and that there was no erroneous ruling upon the trial which affected the liability of the defendant. We think the letter which was introduced in evidence, written by the plaintiff to the defendant after the transaction, was inadmissible, but as that related solely to the making of the contract and had no relation to the amount of damage sustained, and as the making of the contract and its breach by the defendant were conclusively established by the evidence, the admission of that letter was not an error which would justify a reversal of the judgment.
It follows that the judgment and order appealed from should be affirmed, with costs.
Yah Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ.t concurred.
Judgment and order affirmed, with costs.